THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION CRIMINAL SESSION CASE NO. 292 OF 2013 (Arising from MAK/003/2013) UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION VERSUS 1. NAMUYANJA HANIFA 2. LUKENGE HUSSEIN::::::::::::::::::::::::::::::::::::::::::::ACCUSED PERSONS JUDGMENT BY HON.MR.JUSTICE JOSEPH MURANGIRA Introduction. The two accused persons are represented by Mr. Senkeezi Steven from Senkeezi Sali Advocates & legal consultants on state brief. Whereas, the prosecution is represented by Mr. Bwiso Charles Bogere, Senior State Attorney, working with the Directorate of Prosecution. The two accused persons are jointly charged with murder Contrary to Sections 188 and 189 of the Penal Code act, Cap.120 Laws of Uganda. The particulars of the offence are that on 17th December, 2012, at Kibalama Zone, Lukuli, Makindye Division in Kampala District, Namuyanja Hanifa, Lukenge Hussein and others still at large, unlawfully killed Nalwoga Shamim. The Assessors in this case are: Ms. Muhairwe Judith and Mr. Wasibi Joseph. They were both present in Court throughout the trial of the two accused persons. 2. Ingredients of the offence of murder. In order for the prosecution to prove its case, the following ingredients have to be considered:- That death must have occurred. That the death was unlawful. That the death was caused with malice aforethought. That each accused persons participated in the killing of the deceased person named in the indictment. 3. Burden of proof It is settled law that in all criminal cases apart from statutory offences, the prosecution bears the burden to prove all the ingredients of the offence charged against the accused beyond reasonable doubt. The standard of proof is proof beyond reasonable doubt. The burden does not shift to the accused to prove himself innocent, rather the prosecution must prove the accused guilty. If there is any doubt in the prosecution case, that doubt must be resolved in favour of the accused. Again, it is our criminal law that an accused should not be convicted on the weakness of his/her defence or on mere suspicion. See the case of Woolmington – vs- Director of Public Prosecutions (DPP) [1935] AC 462. 4. The Prosecution Case 4.1 The prosecution adduced evidence from eight (8) witnesses; namely:- Musenze Muhamed Semuwemba, PW1, the father of the deceased. Kabega Abdul Semuddu, PW2, a resident of Lusaka Zone, Makindye Division. Dr. Kalungi Sam, PW3, the medical Doctor in Mulago Hospital. He carried out the post mortem report on the deceased (Exh. P2) Mukomazibwe Eddie, he was at the time of the death of Nalwoga Shamim the defence Secretary in lower Konge village, PW4. D/AIP Twinamasiko Erasmus, PW5, the Police Officer attached to Konge Community Police Station. D/ASP Namwange Slyvia, PW6, the Police Officer attached to Gadaff Training School, Jinja, the investigating Officer of this case. No.39551, D/CPL Seggawa Julius, PW7, the Police Officer attached to Mbale Police Station. Geoffrey Onen, Principal Government Analyst in the Directorate of Government Laboratory, Wandegeya, Kampala City, PW8. 4.2 The prosecution exhibited in Court the following exhibits in order to prove the case of murder against each accused person:- Police Form 24, Exh PA1 and Exh PA2, both examination medical reports of A1 and A2, respectively. Police Form 48B, Post Mortem report of Nalwoga Shamim, Exh P2. Knife with wooden handle Exh. P4, and a bed sheet stained with blood exh P5. A bed cover stained with blood Exh P6. A cream – grayish shirt stained with blood, Exh P7. A shirt with bluish colour stained with blood, Exh P8. Swap of suspected fluids, Exh. P9. Swap of decomposing human tissues, Exh P.10. Police Form 17 A, Exh P12. Exhibit slips in a bundle, Exh P13. Search certificate, Exh, P11. Sketch plan of the scene of crime, Exh P14. Sketch plan of the scene of crime Exh. P15. Report on the alleged case of murder of Nalwoga Shamim, Exh P16. DNA analysis report, Exh.P17. Charge and Caution Statement of A2, Lukenge Hussein, Exh P.18. 5. The defence Case. 5.1 A1, Namuyanja Hanifa, gave evidence not on oath; she called no other witness to give evidence on her behalf. For the reason that she gave evidence not on oath she was never cross-examined by the prosecution’s lawyer. 5.2 Lukenge Hussein, A2, gave evidence on oath. He was seriously cross-examined on his evidence in examination in Chief by Counsel for the prosecution. He, too, never called any other witness to give evidence on his behalf. 6. Consideration of the case. 6.1 Counsel for the prosecution, Mr. Bwiso Charles Bogere in his submissions evaluated the entire evidence on record, considered the burden of proof and submitted that the prosecution proved its case against each accused person beyond reasonable doubt. He prayed to this Court to find each accused person guilty of the murder and that each accused be convicted accordingly. 6.2 In reply, to the prosecution’s submissions, Counsel for the defence, Mr. Senkeezi Stephen, submitted that the defence is not contesting the first three ingredients of the charged offence of murder. He submitted that the defence contests the participation of each accused person in the killing of the deceased, Nalwoga shamim. He, too, evaluated both the prosecution and the defence case, considered the burden of proof and cited a few authorities in support of the defence case. He submitted that there is no evidence that was produced by the prosecution to hold any of the accused person to be responsible for the alleged murder of Nalwoga Shamim. He prayed that this Court finds each accused person not guilty of murder, and that each accused be acquitted accordingly. 6.3. In consideration of the case by the assessors, the two assessors gave a joint opinion. The assessors considered the ingredients of the offence of murder; the burden of proof as it was explained to them in the summing up notes to the assessors, evaluated both the evidence of prosecution and the defence. In their joint opinion, the assessors advised me to find each accused person guilty of murder and that each accused person be convicted accordingly. 6.4 Consideration of the case by Court. The ingredients of the offence of murder as well set out hereinabove in this judgment were submitted on by Counsel for the prosecution. In reply Counsel for the defence Mr. Senkeezi Stephen, submitted and conceded to the three ingredients of the offence of murder. I evaluated the prosecution evidence and all the eight (8) prosecution witnesses testified that Nalwoga Shamim, the deceased named in the indictment is dead. A1 and A2 I their respective defence evidence corroborated the prosecution evidence that Nalwoga Shamim died. I am there in agreement with both lawyers for the parties and the assessors that the prosecution proved the first ingredient of murder, that is, death occurred of Nalwoga Shamim beyond reasonable doubt. On the 2nd ingredient of murder; that death of deceased was unlawful. The defence did not contest this ingredient. Thus, there is no doubt that the death of the deceased was caused unlawfully. Article 22 (1) of the Constitution of the Republic of Uganda, 1995, guarantees Protection right of life. To this effect no person shall be deprived of his/her life except as is provided by law or by a sentence of death confirmed by the Supreme Court of Uganda. Again, in the case of WANDA ALEX and 2 OTHERS –VS- UGANDA, Supreme Court, Criminal appeal No.42 of 1995, it was held that:- “After the Court has properly considered all the essential elements which constitute the offence of murder, then the killing was unlawful, since it was not accidental or authorized by law.” In the result, therefore, in agreement with both Counsel for the parties and the assessors, I hold that this 2nd ingredient of the offence of murder was proved by the prosecution beyond reasonable doubt. On the 3rd ingredient of the murder, that is, the death was caused with malice aforethought caused for the prosecution submitted that the death of Nalwoga Shamim was caused by Malice aforethought. In reply, Counsel for the defence submitted that the defence is not contesting the said ingredient of murder. To determine malice aforethought the appellate Courts in a number of decided cases have sorted out that problem. For instance, in the case of WANDA ALEX & 2 OTHERS –VS- UGANDA (Supra) it was held that:- “Malice aforethought could be inferred from the surrounding circumstances such as the weapon used and the part of the body or which it was used.” Again, Section191 of the Penal Code Act, Cap. 120, Laws of Uganda, defines malice aforethought as:- “Malice aforethought shall be deemed to be established by evidence proving either of the following circumstances:- An intention to cause death of any person whether such person is the person actually killed or not; or Knowledge that the acts or omissions causing will probably cause the death of some person, whether such person is that one actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, by a wish that it may not be caused.” In the instant case, Dr. Kalungi Sam, PW3, gave evidence how the deceased, Nalwoga Shamim was murdered. He exhibited in Court the medical report he made on the said deceased. According to his evidence, that PW3’s findings revealed that:- “Skin peeling off due to decomposition. Cut wound anterior aspect of the neck, left to right sides of the neck, 24 cm long, extending to cervical vertebra in depth, the cut wound extends from the stervoclavicular joints. Transected soft tissues of neck (trachea, esophagus, muscles, and blood vessels). Cut wound anterior aspect of face, 36cm, extending from left to right ear, transecting upper lip, tongue, left upper jaw bone. Cut wound on the left thigh 26cm x 24 cm with transected muscles and left femoral blood vessels. Cut wound, right thigh, anterior, 19cm x 13 cm. Herniating intestines (small and large) in perineum. Cut wound, perineum, with missing vulva, clitoris, and vagina, creating communication with the rectum. Fractural left Zygoma, left orbit lacerated soft tissues of face. 10) Stomach contains 500mls of blood. 11) Brain autolytic. The cause of death: sharp force trauma. “See exh P2. In his evidence, PW3 explained in simple terms the meanings of each of the above medical terms to the understanding of the Court and all the parties involved in this case. From the evidence of PW3, which evidence was never challenged in cross-examination nor by each accused person in their respective evidence in defence, clearly shows that the death of late Nalwoga Shamim was caused with malice aforethought. In the premises, considering the authorities cited above, the evidence of PW3; and for the fact that the defence conceded to this ingredient in their final submissions in reply to the submissions by Counsel for the prosecution, I am in agreement with the assessors that the prosecution proved this said 3rd ingredient of the offence of murder beyond reasonable doubt. I now turn to consider the 4th ingredient of the offence of murder, that is, participation of each accused in the killing of Nalwoga Shamim. When the indictment was read and explained to the accused, each accused person denied the charge in total. In their respective defences, the accused persons denied participating in the killing of the deceased, Nalwoga Shamim. In their evidence, each accused person stated that the deceased, Nalwoga Shamim was killed by Nasaka Hadijja. In his submissions, Counsel for the defence, Mr. Senkeezi Stephen, submitted that the prosecution failed to adduce evidence to prove beyond reasonable doubt that each accused person participated in the killing of the deceased, Nalwoga Shamim. I evaluated the prosecution and the defence evidence in order to establish whether A1 and A2 participated in the killing of the deceased Nalwoga Shamim. PW1, PW2, PW4, PW5, PW6 and PW7 gave evidence that the deceased was found dead in the one room rented house belonging to A1. That they found A1 in the very room seated and that she was looking at the decomposing body of the late Nalwoga Shamim. A1 in her testimony not on oath gave evidence that on the date she was arrested the body of the late Nalwoga Shamim was in her house. A2 in his evidence also stated that the body of late Nalwoga Shamim was found lying in state in A1’s house. Therefore, the scene of crime was properly identified and proved by the prosecution. I can at this stage state that the evidence that was adduced was circumstantial in nature. I, therefore, warn myself that I cannot convict the accused persons on such evidence, unless the prosecution evidence is air-tight, irresistibly points to the accused persons. According to PW3’s evidence, the deceased had died 2 to 3 days ago. It was also proved that the skin of the deceased was peeling off. A1 in her evidence confirmed that she was in the very room where the deceased was found by the time of her arrest. The intention of the A1 staying with a decomposing body of the deceased for such a long time could not be explained by A1 in her defence not on oath. It is the evidence of the prosecution that blood splashed all around the room where the deceased’s body and A1 were found. That A1’s bed sheets and other clothes contained blood. In defence A1 gave evidence that the deceased was killed by Nasaka Hadija, her biological daughter. That Hadija Nasaka ran away and that she has never been arrested by the police. In defence A2 also confirmed that the deceased was murdered by his auntie, Hajija Nasaka. For the fact that the body of the deceased was decomposing, which evidence was never challenged by accused persons in cross-examination, the evidence of A1 that on 17/12/2012 when she returned home, she found the deceased already murdered and Nasaka had already ran away, must be a total lie. And it is not true that A1 was engaged in any gainful employment as she alleges in her evidence not on oath. My analysis of A1’s untruthful evidence is corroborated by A2’s evidence whereby he stated that he was the one renting the house in issue for A1 who is his grandmother, and that he was providing food, sugar and everything to A1. The A1’s and A2’s evidence shows that A1 kept at her home all the time. She must have been present, therefore, when the murder of Nalwoga Shamim took place. A1, therefore, must have witnessed the cuts and injuries on the deceased throughout. Certainly, by 17/12/2012, A1 knew that Nalwoga Shamim had died and opted to keep quiet over the matter. I agree with PW1, PW2, PW4, PW5, PW6 and PW7’s evidence to the extent that A1 and A2 never reported the death of Nalwoga Shamim to any authorities before, during the torture and after the death of the deceased. From the available evidence on Court record, A1 knew that the body of Nalwoga Shamim was decomposing and that the body parts mentioned in Exh P2, the postmortem report were already taken by Hadijja Nasaka. A1’s courage to stay in a one- roomed house with a decomposing body of the deceased cannot be the conduct of an innocent person. In the circumstances of this case, I make an inference that A1 was an accessory before and after an act, because she possessed prior knowledge. She was involved in adequated preparation in the murder of Nalwoga Shamim. PW1 in his evidence stated that when the deceased at one time visited A1 at her home, she found a human hand in A1’s house, and that the deceased at the time was warned not to reveal what she had seen. It is clear from the prosecution evidence that A1 had held the deceased in captivity in her house together with Hadija Nasaka. A1 must have known that when Hadijja Nasaka brought the deceased to her home, she knew she had been brought to be sacrificed in a ritual murder. That was an act on A1’s part, which resulted into the death of Nalwoga Shamim. In her defence not on oath, A1 never offered or raised any credible defence at all. The evidence of A1 is therefore unbelievable. Her evidence contradicts that of A2 in as far as that; A2 told Court that he is the one providing all the necessaries of life to A1. A1 was not working anywhere. That A1 never reported to him the death of the deceased. All in all, from the evidence both of the prosecution and the defence, I am in agreement with the assessors that A1 participated in the killing of the deceased, Nalwoga Shamim. She was squarely, put at the scene of crime by the prosecution evidence. On the part of A2, throughout the trial and in defence A2 denied killing the deceased. In his evidence, he showed how he had no grudge with the deceased and his other siblings. He claimed that the charge of murder was a frame up against him by PW1, as the two have a land dispute in Konge Zone, Boston in Lukuli, Makindye Division. From the A2’s evidence in cross-examination, A2, has no grudge with PW3, PW4, PW5, PW6, PW7 and PW8, all the prosecution witnesses. Thus, the prosecution witnesses had no cause to tell lies against him. Thus, their respective evidence is believable as against A2. In his evidence on oath A2 confirmed to Court that A1 is his real grandmother and that he is one who was renting for A1 the one roomed house where the deceased was discovered dead by the neighbours and police. A2 was in full control of A1 and the house he was renting for her, because he was the one paying rent and providing food, sugar, paraffin and other necessities to A1. From his own evidence both in examination in-chief and cross-examination, A2 knew that the deceased was at A1’s home allegedly by receiving treatment from Nasaka Hadija, his real auntie. Again, it is clear from his evidence and his charge and caution statement (Exh. P 18) that at a certain period in time the life of Nalwoga Shamim was deteriorating. A2 as a care taker of A1 certainly must have been checking on A1 on a daily basis. Therefore, that means that he saw all the cut wounds and injuries that were inflicted on to the deceased’s body. As he (A2) clearly put it in his charge and caution statement (Exh P8), he knew all what Nasaka Hadijja did to the deceased. A2 must have been a close associate of Nasaka Hadija and A1 in the case charged against him. The Police prosecution witnesses discovered A2’s shirt that was stained with blood from his house which was about 300 metres from the scene of crime, hidden underneath his sofa seat. A2 confirmed in his defence that a search was carried out in his house in his presence. A2 in his defence acknowledges that the said shirt (Exh P 7) belongs to him. I looked at the shirt it had bloodstains. In defence however, he stated that the said shirt was recovered at the scene of crime, and that it was taken there by a lady who used to wash his clothes. It is important to note that the prosecution witnesses were never contradicted on the issue of the said shirt in cross-examination. The evidence of PW8 is strong circumstantial evidence as against the two accused persons. Scientifically, PW8 stated in his evidence that he failed to obtain substantial DNA from the shirt to relate it with the deceased’s. In his evidence still, he stated that the scientific analysis of the blood that was got from A2’s shirt was blood of a female human being. The prosecution’s and defence’s cases are investigating the death of Nalwoga Shamim, who was a female human being. It is, therefore, my finding that the blood that was found on Exh P7, A2’s shirt was that of the deceased, Nalwoga Shamim. Further, it is the prosecution evidence that paraffin also was used in the killing of the deceased. And that the said paraffin was at all times being procured by A2. A2 denies that fact. It is a proven fact that paraffin when it is administered in a human body, it kills. It appears to me, from the evidence on record, the paraffin was also used on the decomposing body of late Nalwoga Shamim, to deter it from smelling. There is also evidence from PW6 and PW7 that A2 admitted before them that he regularly bought paraffin and taking it to A1’s house. Even in his evidence on oath A2 admits that he used to buy paraffin for A1 for her use in the said one-roomed rented house. Circumstantially, paraffin was one of the substances that were used in the death of Nalwoga Shamim. It was also used to disguise the smell of the decomposing body of the deceased. The evidence of the prosecution put A2 at the scene of crime. I have weighed A2’s evidence as against that of the prosecution evidence, and I am certain that A2’s defence did not create any doubt in the prosecution evidence. A2’s evidence on oath contradicts his statement in charge and caution statement (Exh.P18). Exh P18 corroborated the evidence of PW5 and PW7. In such premises, the evidence of A2 is taken to be full of lies. In sum total, I agree with the assessors that the prosecution proved beyond reasonable doubt the participation of A2 in the killing of Nalwoga Shamim. Furthermore, from the prosecution evidence and the nature of the indictment, A1 and A2 are jointly charged. A1 and A2 in their respective evidence stated that it was Hadija Nasaka who killed the deceased. Under Section 19 (1) and (2) of the Penal Code Act, Cap 120, A1, A2 and Nasaka Hadija are termed Principal Offenders. Again, from my analysis of the entire case in this judgment, A1, A2 and Nasaka Hadija are joint offenders in prosecution of common purpose, under Section 20 of the Penal Code Act (Supra). Under the aforetasted aspects of the law, each of the accused is deemed to have committed the offence of murdering Nalwoga Shamim. Finally, in consideration of the entire evidence on Court record, the submissions by both Counsel for the parties, the joint opinion of the assessors, and the law applicable, I find A1 and A2 guilty of the charged offence of murder; and A1 and A2, are respectively, accordingly convicted of murder, Contrary to Section 188 and 189 of the Penal Code Act. Dated at Kampala this 27th day of January, 2016. ………………………………………. Joseph Murangira. Judge 27/1/2016 Mr. Bwiso Charles Bogere, Senior State Attorney is present. Mr. Senkeezi Stephen, for the accused persons. The two accused persons are in Court. Ms. Margaret Kakunguru, the Clerk and Ms. Catherine Musoke the interpreter are in Court. The 2 assessors are not in Court. Court: Very well. The judgment has been delivered to the parties in open Court. The case is now for mitigation of sentence and sentencing the accused. Accused further remanded. Joseph Murangira Judge 27/1/2016. Prosecution: Case for mitigation. Upon conviction of murder the convict shall suffer death. Sentencing guideline proves also death as the maximum sentence of 35 years as the starting point up to death. This case is the rarest of the rare cases. It was proved that it was a planned case and premeditated. It was committed by persons who had a common purpose. The victim’s body parts were unlawfully removed. The killing was in furtherance of the Human Sacrifice The evidence on record shows that all the circumstances were gravating - there were multiple injuries. All the body was mutilated. Weapon used was a knife – which is a dangerous weapon. The killing was deliberate. The offenders targeted the victim. The victim was a vulnerable human being who was held in captivity. We pray for a deterring sentence, because the offenders are not remorseful. We pray for death sentence. In the alternative, we pray for a life imprisonment sentence. We appreciate the age of A1. However if she was mindful of her age she could not have committed this offence. The law does not discriminate between the offenders. We so pray. Mr. Senkeezi Stephen for the accused: In mitigation for the sentence: Paragraph 7 of the sentencing guidelines. A1: Item 1 part 1 of the 3rd Schedule of the sentencing guideline. 35 years of up to death in murder cases. Court to reduce from the starting point of 35 years. A1 is aged 82 years. Paragraph 4 of the sentencing guidelines places her in a group of the advanced age. Paragraph 21 (l) of the sentencing guidelines give it as a mitigating factors. Paragraph 9 (4) (a) of the sentencing guidelines – discourages the handing of custodial sentences to people with advanced age. We submit against the prayer of the state that A1 be sentence to death or imprisonment for life. A1 lost a relative in Nalwoga Shamim. Last time offender paragraph 21 (f) of the sentencing guidelines. She has never admitted to bail and it is now over 3 years – should be taken into consideration. She has not committed any criminal offence in prison. The convict is remorseful. She has diabetes, pressure and Ulcers. Yes she is on medication while in Luzira Paragraph 13 of the sentencing guidelines – indication of sentence – if with paragraph 21 (l) of the sentencing guidelines. I pray that she be sentenced to a caution. We so pray. In regard to A2 Paragraph 21 (l) of the sentencing guideline – youthful age in capital offences is a mitigating factor. A2 is just 29 years – under this provision, this Honourable Court starts reducing from the starting point of 35 years. A2 grew up with a mother who died in December 2005. Under paragraph 21 (m) of the sentencing guidelines. A2 is 1st time offender under paragraph 21(f) of the sentencing guideline under paragraph (b) of the sentencing guidelines. Has been on remand slightly over 3 years. A2 has not committed a prison offence. A2 has reformed since the time of his manager. He has pursued studies while in prison – which have made him a better person. He is now pursuing a Diploma in the same field. A2 is remorseful – paragraph 21 (i) of the sentencing guidelines. A2 is still connected with his relatives. We pray that Court be please to sentence A2 to 5 years inclusive of period he has been on remand. We so pray. Court: sentence shall be delivered on 28/1/2016 at 9:30 a.m. Joseph Murangira 27/1/2016 Court: Reasons for sentence and the sentence. In passing the sentence against each convict the following mitigating factors are considered:- The mitigating factors that were advanced by Counsel for the state. The factors Counsel for the state advanced in his submissions for mitigating for the appropriate sentence that should be passed against each convict are in my considered opinion mere appealing in the interests of Justice. The mitigating factors for a very lenient sentence amounting to a caution in a murder case that were advanced by Counsel for the convicts have been considered. A1, Namuyanja Hanifa is aged 82 years old. According to the medical evidence, which is well expressed in the medical post mortem report. The private parts, the tongue, the small and large intestines of victim were removed and taken to the unknown destination. The victim was serious tortured before she met her death. From the evidence on record and the way the victim was murdered puts this case in the rare of the rarest cases. And the convicts in that matter would deserve the maximum sentence. The two convicts are 1st offenders. From the start of the trial up to the end of the trial, now considering the demeanor of the accused/convicts they are not remorseful. After delivering the judgment, each convict appeared un bothered with the outcome of their case. They clearly knew what they did in relation to Nalwoga Shamim’s death. Each convict has been on remand for a period of 3 years. In consideration of all the above reasons for sentence, I would have sentenced A2, Lukenge Hussein to 35 years imprisonment. I then have to deduct 3 years, the period he spent on remand, pursuant to Article 23 (8) of the Constitution of the Republic of Uganda, 1995. Therefore, A2, Lunkenge Hussein is sentenced to 32 (Thirty two) years imprisonment. For A1, Namuyanja Hanifa, considering, among the above detailed reasons for sentence, her age of 82 years, I would have sentenced her to 18 years imprisonment. I then deduct the 3 years she has been on remand. Thus, A1, Namuyanja Hanifa, is sentenced to 15 (fifteen) years imprisonment. Dated at Kampala this 28th day of January, 2016. ……………………………………… Joseph Murangira Judge
